King v Mental Health Tribunal & Dpp [2003] ACTSC 83

3. Pursuant to s 141 of the Act, the appellant appeals to this Court. At the outset of the hearing of this matter the Director of Public Prosecutions, who appeared in the proceedings before the Tribunal and who is a respondent to these appeal proceedings, suggested that there may be an irregularity as one of the grounds relied upon to make out the fitness to plead was the inability to give legal instructions to his legal representatives. That might give rise to the issue of whether counsel had instructions to continue with respect to the matter (cf R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 at 265). Arrangements were accordingly made with the assistance of the Director of Public Prosecutions for the Community Advocate to be appointed as a guardian under the Guardianship and Management of Property Act 1991 (ACT). This having been done, the appeal proceeded.

4. The grounds of appeal broadly covered three aspects. Firstly it was said that the determination was not reasonably open on the evidence which was variously expressed as being contrary to the evidence against the weight of the evidence, the taking into account of irrelevant considerations or the failing to take into account relevant considerations and that there was only one rational inference open on the evidence namely, that the appellant was unlikely to become fit to plead within 12 months after 2 June 2003. It was these matters that Ms Morrish QC pressed on the appellant's behalf. Ms Morrish also took as a ground of appeal that the Tribunal had applied the wrong standard of proof but I do not think that this can really be made out on the reasons given by the Tribunal and the nature of the Tribunal's task although I shall later refer to what I regard as certain defects in the Tribunal's reasons. In addition, there was a ground that one of the Tribunal members "descended into the arena" and acted both as de facto witness and decision maker. In the end, this ground was not pressed and I do not think it can be said to have any real substance.

5. Where an order pursuant to s 310 of the Crimes Act 1900 (ACT) is made that a person submit to the jurisdiction of the Mental Health Tribunal for a determination of fitness to plead, the Tribunal is to conduct an inquiry into that matter. Section 68 (2) of the Act provides,

Following such inquiry as the tribunal thinks appropriate, the tribunal shall determine, on the balance of probabilities -

(a) whether or not a person who is subject to an order to determine fitness is fit to plead to the charge; and

(b) if the tribunal determines that the person is unfit to plead to the charge - whether or not the person is likely to become fit within 12 months after the determination is made.

The matters determinative of fitness to plead are set out in s 68 (3) of the Act,

The tribunal shall make a determination that a person is unfit to plead to a charge if satisfied that the person's mental processes are disordered or impaired to the extent that the person is unable -

(a) to understand the nature of the charge; or

(b) to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) to understand that the proceedings are an inquiry as to whether the person committed the offence; or

(d) to follow the course of the proceedings; or

(e) to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) to give instructions to his or her legal representative.

6. The Tribunal's function under s 68 of the Act is to conduct an inquiry into the issue, that of a person's fitness to plead, and its likely duration. It is for the Tribunal to determine the appropriateness of the inquiry and a wide number of persons, including persons given leave to do so, may appear and give evidence in the proceedings before it. It is not an inter partes proceeding and it cannot be said that a particular party bears the legal burden of proof of the issue to be determined.

7. The standard of proof of the issue for determination is set by the terms of s 68 of the Act and is that of balance of probabilities. As far as the issue of duration of the fitness to plead is concerned, the issue is "whether or not the person is likely to become fit to plead within 12 months". As it cannot be said that any party has the burden of proof as to this issue, the matter could well founder on the Tribunal being unable to say what the position is. This factor emphasises the necessity to scrutinise the material carefully before one can say, as the appellant contends, that there was no material upon which the Tribunal could have made the determination that it did. It also means that, even if the Tribunal's determination that the appellant would be fit to plead within 12 months is not supported by the evidence, the question of the duration of the appellant's fitness to plead beyond 12 months needs to be separately considered on the material before the Tribunal.

8. The Tribunal had before it reports from Dr Lucas and evidence given by him by telephone. Dr Lucas specifically addressed the matters referred to under s 68 (3) of the Act and in his report of 12 May 2003 gave his opinion that,

(a) Mr King understands the nature of the charge.

(b) He is able to enter a plea and exercise the right to challenge jurors.

(c) He is able to understand the proceedings are an enquiry as to whether he committed the offence.

(d) Mr King lacks the capacity to follow adequately the course of the proceedings.

(e) His capacity to understand the substantial effect of any evidence brought by the prosecution would be compromised to the extent described above.

(f) He is unable to give legal instructions to his legal representatives.

(g) I have assessed Mr King as not fit to plead. I believe it probable he will not become fit to plead within twelve months. My reasons are set out below.

9. In addition, the Tribunal had two short reports and evidence given before them by Dr Stephen Rosenman, the appellant's treating psychiatrist. Dr Rosenman expressly deferred to Dr Lucas on the specific questions concerning fitness to plead. Both psychiatrists elaborated in their evidence to the Tribunal on the duration that the appellant might be unfit to plead.

10. The appellant's major complaint was that on the evidence called before the Tribunal, the Tribunal should have concluded that it was likely that the appellant would not become fit to plead within 12 months after the determination. Although both medical practitioners were of the view that the appellant was unfit to plead and would be unlikely to become fit within 12 months, they were not unequivocal as to that duration.

11. At the conclusion of his report, Dr Lucas said,

Given all the circumstances, and allowing for the problems of prediction, it seems to me that Mr King's prognosis for at least the next twelve months is poor in that his major depression will continue at a clinically significant level and he will remain at high risk of suicide, even if his legal position is resolved. In all the circumstances I doubt whether psychiatric treatment will make a major difference and that, I believe, is also the view of Dr Stephen Rosenman as expressed in the last paragraph of his report of 9 May 2003. Our observations in November 2002 and May 2003 suggest further intense legal stressors would probably cause severe relapses of depression

In short, Mr Maurice King is suffering from a major depressive episode which amounts to a mental illness. In my opinion he is not fit to plead at present and on the balance of probabilities I seriously doubt whether he will become fit within twelve months.

12. It is the qualification of "serious doubt" that Dr Lucas makes to what he describes as the balance of probabilities that raises an issue as to the opinion that he gives as to the duration of the appellant's fitness to plead. On one view, it is the serious doubt that is entertained on the existence of the balance of probabilities; on another view, it is tautological. The matter was also not assisted by his evidence when he said "my judgment of it is that he is unlikely to become fit within 12 months. I could be wrong ...". Expressing the matter in that way creates a degree of uncertainty as to Dr Lucas' view and to the task of the Tribunal in assessing the probabilities.

13. In Dr Rosenman's report of 9 May 2003, he said -

It is difficult to make a reliable prediction about his fitness for the coming twelve months, however, over the time that I have known him he has been consistently overwhelmed by psychological stresses, particularly in relation to the case. Away from the legal matters he is able to address issues with reasonable composure but a loss of composure and disorganisation of his thinking that occurs when faced with court or legal pressures appears likely to continue.

14. Dr Rosenman, in his evidence, also pointed to what he described as a "paradoxical dilemma" that while there exists the circumstance where the appellant has to plead, it was his view that the appellant would not be fit to plead, but if the need to plead was taken away, then he may become fit to plead. It was also quite clear that he regarded his task as being the appellant's treating psychiatrist and that he left the issue of advice as to the duration of fitness to plead to Dr Lucas.

15. At the conclusion of the evidence, the President of the Tribunal gave the findings of the Tribunal and expressed short reasons on the spot. I appreciate that these reasons were given after the Tribunal had sat into the evening and after the Tribunal had considered the matter for only some 20 minutes after the evidence had concluded. In those circumstances, I am prepared to make as much allowance as I can for this circumstance but it seems to me that the reasons, no matter how generously construed, essentially do not support the finding that the Tribunal made. The Tribunal said -

We're also very grateful to the experts and the witnesses who have come along to give evidence to the Tribunal and on all of the evidence before us we find that Mr Maurice King is not fit to plead but is likely to become fit within 12 months after this determination.

And the Tribunal finds that Mr King has a technically reversible condition, being major depression, which has not been addressed as vigorously as it can be. The Tribunal is mindful of the suicide risk which cannot be separated from the severity of the major depression and which in probability will diminish as the depression is alleviated.

Now on the issue of the duration of the unfitness to plead, both Dr Lucas and Dr Rosenman in our view were uncertain. Dr Lucas said, amongst other things, in his judgment it is unlikely that Mr King would become fit but he said "I could be wrong", and likewise Dr Rosenman agreed with the hypothesis that there could be an improvement with different type of treatment, and his view also was, and rightly we find, "difficult to make a reliable prediction" and I quote there.

Therefore our finding is that whilst Mr King is unfit to plead he is likely to become fit within 12 months. The Tribunal wishes to thank all of the experts and all the evidence and the attendance of all of the people here to help us in our deliberation of that matter.

16. No challenge is made to the finding that the appellant is not fit to plead. It is the duration of this condition that is in issue. On the face of it, the Tribunal has found that some uncertainty was expressed by the expert witnesses, even though their opinion was expressed on the probability that the appellant would not become fit to plead within 12 months. That conclusion was then said to justify a finding that it was likely that the appellant would become fit to plead within 12 months. Ms Morrish put it that there was, in fact, no evidence at all that could support that finding and I was initially inclined to think that was the case. Mr Refshauge SC, the Director of Public Prosecutions, put it that as the Tribunal had expressed a finding that the appellant had a "technically reversible condition", that finding, he said, could justify the finding that the Tribunal made. As to that, he pointed to some evidence given by Dr Rosenman that if the trial be deferred for 12 months, that might put the appellant back in the position that he was in January or February 2003 (that is, where fitness to plead was not the issue that it is now).

17. I was referred to these questions and answers in Mr Refshauge's cross-examination of Dr Rosenman -

Was it not the position that in answer to some questions I put to you, you indicated that with the current treatment, were his court case deferred for a period of 12 months, you anticipated that he would be able to be discharged from hospital and be back to the situation where he was in March this year?---Yes.

And would you agree with me that that's a change of his condition in response to treatment?---No, my - the change of his condition in response to a change in situation.

18. I doubt very much whether the Tribunal did have that evidence in mind when it spoke of the "technically reversible condition". It certainly does not sit with the expressed reasons concerning the duration of the unfitness to plead namely, that the two medical experts were "uncertain" on that issue. In light of Dr Rosenman's qualification that it is not the treatment that would bring this about but rather the change in situation it is difficult to see that as a reversible condition. This is particularly so as Dr Rosenman had earlier said that as the adjourned court date comes closer, the appellant's position would worsen and that he would end up back where he is at the present time as far as his condition was concerned.

19. Mr Refshauge further pointed out that the Tribunal had before it Dr Rosenman's answers in cross-examination to this effect,

So if I can try to tease out of that, if the trial was for example deferred for 12 months, it is your expectation that with the treatment regime you propose, and that includes the current treatment plus whatever additional or ancillary assistance is provided, you expect that in that period of time he will be in a position where he can live autonomously out of the hospital?---I think he would - I would anticipate that he would go back to the clinical state he was in, in the last three months, which I thought was quite reasonable up to this time.

So for instance the state that he was in in March?---Yes. But I would not be then surprised if I heard he was dead, that he'd killed himself.

In what circumstance?---Well, despite being clinically in a reasonable state, that the suicidal risk would remain very high.

But you wouldn't necessarily retain him in hospital for all that period of time on the basis of that possible risk?---No.

DR BENNETT: May I interrupt for a second? Is it not also possible that on a better dose of medication he'd be better than he was in March, when he's obviously still quite fragile and actually had planned his suicide, just saying will he be as he was then. Is it not possible there could be some improvement?---Well, he might be better. He was certainly better than he was before, or better than what he is at the moment. It's a question of his objective treatment, and I thought that the modest objective treatment had been attained.

20. As Mr Refshauge submitted, it may be possible to draw from that interchange the conclusion that Mr King's condition is reversible and perhaps that there are other treatments which might improve it. The passage does not suggest what that treatment might be. The interchange also does not deal with the effect that by then the trial, which had hypothetically been deferred, might at that stage be impending and what effect that circumstance might have on any improvement.

21. There appears to be some material, albeit slight, upon which the Tribunal could make the decision that it did. However, to make such a decision without taking into account the advice from the expert witnesses as to the effect that the fact of an impending trial might have on the appellant's mental state and on his fitness to plead, is to put to one side a serious issue which should have been addressed. Without it being addressed and taken into account, I do not consider that the Tribunal was justified in concluding that the appellant was likely to become fit to plead within 12 months. It is also an issue that needs to be addressed in the context of whether the Tribunal could be satisfied on the balance of probabilities that the appellant would not be likely to be fit to plead within 12 months.

22. Since the determination, another circumstance has arisen which I consider should be brought to account. On 4 August 2003, on the application of Dr Rosenman, the Mental Health Tribunal made an involuntary psychiatric treatment order in respect of the appellant. The reasons for seeking the order would appear to arise out of the present situation not having been resolved by the Tribunal's decision. There is no material before me on whether the appellant's treatment has been affected although I was informed that it was Dr Rosenman who sought the order and that it was for the appellant's protection.

23. I expressed to counsel at the hearing the view that as there may have been some material upon which the Tribunal could have acted, even though their reasoning to their ultimate conclusion may not have been justified, I would need to resolve that issue in light of my duty to rehear the matter or to send the matter back to the Tribunal with directions to further hear it. I understand the preference is for me to deal with the matter and, accordingly, I propose that the parties place before me such supplementary material from either or both of Dr Lucas and Dr Rosenman by way of affidavit and cross-examination thereon if so advised. I will hear the parties further on this matter.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the appellant: Ms J Morrish QC with Mr S Whybrow

Solicitor for the first respondent: ACT Government Solicitor

Counsel for the second respondent: Mr R Refshauge SC

Solicitor for the second respondent: ACT Director of Public Prosecutions